Savrimootoo v Minister for Immigration and Anor
[2018] FCCA 449
•28 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAVRIMOOTOO v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 449 |
| Catchwords: MIGRATION – Migration Review Tribunal – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa – reinstatement application – four year delay in applying to reinstate a proceeding that was dismissed for non-attendance – inadequate explanation for non-attendance – poor prospects of success in the substantive application. |
| Legislation cited: Migration Act 1958, s.54 |
| Cases cited: Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12; (2004) 78 ALJR 992; [2004] HCA 3 |
| Applicant: | SANDRA SAVRIMOOTOO |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 373 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 8 February 2018 |
| Date of last submission: | 8 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2018 |
REPRESENTATION
| Advocate for the applicant: | In person by telephone |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | David Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Advocate for the second respondent: | None |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application in a case filed on 21 December 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG373 OF 2013
| SANDRA SAVRIMOOTOO |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application to reinstate a proceeding. The applicant filed an application on 22 March 2013 to review a decision of the then Migration Review Tribunal (“the Tribunal”). The matter was listed for final hearing on 9 December 2013. The applicant did not appear on that date, and the matter was dismissed for non‑appearance. About four years later, on 21 December 2017, the applicant filed an application in a case seeking reinstatement of her review application. That application came on for hearing on 8 February 2018.
Background
The background to the matter is very long and convoluted. However, a somewhat abbreviated chronology is as follows. The applicant arrived in Australia on 4 July 1999 as the holder of a student visa. She was granted a further student visa which expired on 15 March 2007. Since 15 March 2007, the applicant has only held bridging visas for Australia.
Six months after her student visa expired, the applicant applied for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa. That application was made on 26 September 2007. It is the subject of the present proceedings.
The applicant claimed to have commenced a de facto relationship with a New Zealand citizen by the name of Kevin Fisher in February 2006. The New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visas are similar to the more widely known partner visas. The delegate refused the visa application on 9 September 2008. The applicant applied to the Tribunal for review on 29 September 2008.
On 11 February 2009, the applicant was scheduled to marry Mr Fisher. However, the wedding did not go ahead. It appears from departmental movement records that Mr Fisher left Australia on 11 February 2009.
On 21 April 2010, the Tribunal remitted the matter to the delegate for reconsideration on the basis that the delegate had misapprehended a particular criterion.
On 23 February 2011, the delegate wrote to the applicant asking her to provide within 28 days up to date evidence regarding whether her relationship with Mr Fisher was genuine and ongoing. The request was repeated on 1 July 2011. On that occasion, the applicant was given 14 days to reply. She replied on 4 July 2011, saying that she had put in a freedom of information request, saying that the delegate should decide the matter on the basis of the material it already had about the relationship, and asking for an explanation of the basis upon which the further evidence was being sought. The applicant provided no additional information about the current state of her relationship with Mr Fisher.
On 7 November 2011, the delegate refused the visa. The delegate noted that Mr Fisher had only been in Australia for eight days between 11 February 2009 and the date of the delegate’s decision, being 7 November 2011, and also noted that the applicant had been outside Australia for ten days between 2 February 2000 and 7 November 2011. The delegate considered that the applicant and Mr Fisher were not a de facto couple and had lived separately and apart for a considerable period. The applicant lodged an application to the Tribunal for review on 6 December 2011.
On 14 December 2012, the Tribunal wrote to the applicant explaining why up to date information about her relationship was necessary, and requesting that it be provided by 24 January 2013. The Tribunal, on 17 December 2012, invited the applicant to a hearing on 14 January 2013. That date was prior to the date when the up to date information about the relationship was required.
In any event, on 14 January 2013, a barrister appeared before the Tribunal for the applicant and requested an adjournment on the basis that he had only recently been appointed. The Tribunal acceded to that request, although it appears to have been somewhat reluctant.
On 15 January 2013, the Tribunal invited the applicant to attend a rescheduled hearing on 7 February 2013. On 31 January 2013, the barrister notified the Tribunal that he was no longer representing the applicant.
The applicant attended the rescheduled hearing on 7 February 2013 with a new legal representative. The representative said that the applicant’s relationship with Mr Fisher was now over, and also said that the delay of four years in processing the application was a denial of procedural fairness. The applicant also conceded that her relationship with Mr Fisher was over, but took issue with the processing times.
On 15 February 2013, the Tribunal affirmed the delegate’s decision. The Tribunal noted that the applicant had conceded that the relationship was over. The Tribunal noted that the applicant had referred to the High Court's decision in Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163; (2011) 124 ALD 149; (2011) 283 ALR 448; (2011) 86 ALJR 162; [2011] HCA 52 but considered that it was distinguishable. The Tribunal also noted that some of the delays in processing had been caused by the applicant. The Tribunal also recommended Ministerial intervention.
On 22 March 2013, the applicant applied to this court for review. The matter came on for a directions hearing on 15 May 2013. On that occasion, it was listed for final hearing by consent on 9 December 2013.
On 31 October 2013, the applicant left Australia. She apparently was on a bridging visa that had an expiry date in November 2013. As it happened, she did not return before her bridging visa expired, and she consequently lost the right to return to Australia. On 9 December 2013, the applicant did not appear at the hearing and the application was dismissed. The applicant had not previously communicated with the court seeking an adjournment or saying that she would be absent.
The applicant has claimed that, on 6 January 2014, she filed a reinstatement application. In fact, the records of the court show that the applicant attempted to file a reinstatement application by facsimile on 30 December 2013. However, it was rejected by the registry, as the affidavit in support had not been sworn or affirmed, and the fee exemption form had not been properly completed. As email from the registry advised the applicant how to comply with the requirements for filing. However, the applicant evidently did not attempt to file another application in a case until 21 December 2017. That is the application for reinstatement that is presently before the court.
In any event, in about January 2014, either the applicant applied for Ministerial intervention or the Minister became seized of an application for Ministerial intervention pursuant to the Tribunal’s recommendation that there be Ministerial intervention. Also, at about that time, the Australian Government Solicitor advised the applicant that the Minister would oppose any reinstatement application.
Time went by and, by 21 June 2016, the applicant came to understand that the Ministerial intervention request had been refused. The applicant said that, on 1 November 2016, her three‑year exclusion period had passed. The applicant said that, in October 2017, she began to gather information for her reinstatement application. She attempted to get a copy of the court file and tried to get information relating to the Ministerial intervention request.
Ultimately, the applicant filed her reinstatement application on 21 December 2017, and as mentioned, it came on for hearing on 8 February 2018.
The applicant appeared without the benefit of legal assistance at the reinstatement hearing. There had been some communication with my chambers about the applicant appearing by video link. However, the applicant did not take the necessary steps, and it became too late for a video link to be organised. As a result, the hearing proceeded with the applicant appearing by telephone. The applicant told the court that she is presently in New Zealand.
Matters to consider in reinstatement applications
The court explained at the commencement of the hearing that the matters to be considered in a reinstatement application are the period of the delay between the matter being dismissed and the application for reinstatement, the reason for non‑attendance at the hearing, whether there is any prejudice to the other party, and the prospects of success.
Prejudice
The Minister conceded that he would not be prejudiced by the matter being reinstated, subject to questions of costs.
Delay
In relation to the delay, the applicant said that she did not seek Ministerial intervention. She said the Ministerial intervention was put in motion by the Tribunal. In any event, it is well established that Ministerial intervention is not a proper basis for not proceeding with a judicial review application.
The applicant maintained that she did file her application in a case on 6 January 2014. She said that, at the very least, the first respondent was on notice that she was seeking to agitate the lawfulness of the Tribunal’s decision. That is not entirely accurate. As I have explained, the applicant did not actually file an application in a case on 6 January 2014. Given that the applicant did not proceed to correct the deficiencies in her purported application, the first respondent could well have formed the view that the applicant did not wish to pursue the matter any further.
Otherwise, the applicant said that she was mentally, physically and financially drained in 2014. She has provided medical certificates dated 11 March 2014 and 31 March 2014 saying that she was unfit for work from 10 March 2014 to 7 April 2014. The medical certificates did not explain the delay between the dismissal on 9 December 2013 and 10 March 2014. Moreover, it is well established that a medical certificate for an absence from work is not adequate evidence that a person is unfit to attend a court hearing, or by extension, file a reinstatement application.
The applicant also explained her delay on the basis that she is not legally represented. However, the applicant has been represented periodically, at least before the Tribunal. Also, she did attempt to file an application in a case on 30 December 2013 and was told by the registry precisely how to cure the deficiencies in her documents. In addition, the applicant has prepared documents for this court in a fairly professional manner. She has referred to various legal authorities. She has demonstrated that she is much more capable than the average unrepresented litigant in this court.
The applicant also said that she was given mixed information about the Ministerial intervention process. However, as previously discussed, Ministerial intervention is not generally regarded as a sound reason for an applicant not pursuing her or his rights in court.
All in all, I do not consider that the applicant has given an adequate explanation for her delay. The length of the delay is extraordinarily long. A four year delay between the dismissal for non-appearance and an application to reinstate is very unusual in the migration jurisdiction. The Minister submitted that the delay is a sufficient reason of itself to dismiss the application for reinstatement. I would not put it so highly. I consider that it is also necessary to consider the other aspects of the case.
The above portion of these reasons was delivered ex tempore. When I reached this point, the applicant advised the court that the credit on her mobile telephone was about to run out. She could not tell the court when she would have more credit. I indicated that I would continue delivering the reasons, have them transcribed and send them to the applicant. The call then ended. The court tried to call the applicant back, so that the telephone link could proceed at the court’s expense. However, the applicant did not answer.
On reflection, I consider that it is preferable to simply treat this as a reserved judgment, although the Minister’s representative was in court and heard the balance of the oral reasons. What follows has been somewhat more amended from the original transcript than would be acceptable in settling the transcript of oral reasons. The parties were advised by email of this course.
Reasons for non-attendance
The applicant told the court that her reasons for non‑attendance on 9 December 2013 were that she inadvertently wrote down the wrong date of hearing. She said she believed it to be 17 December 2013 rather than 9 December 2013. That is somewhat different to the explanation that she put in her written material. In her written material, she said that she had agreed a tentative hearing date with the solicitor from the Australian Government Solicitor’s office, being 17 December 2013, and afterwards, it had somehow been changed to 9 December 2013. However, she seemed to have resiled from that position. That may have been because the Minister exhibited to an affidavit affirmed by Melinda Anne Jackson on 31 January 2018 a copy of a draft order which shows that 9 December 2013 was added by hand and the applicant signed the draft. There was no mention in that draft order of the date of 17 December 2013.
In any event, the applicant now claims that she inadvertently wrote down the wrong date. The applicant conceded that she was in court on 15 May 2013 when the orders were made and the final hearing was set down for 9 December 2013. In the normal course, the court would have sent her a copy of the order specifying the hearing date of 9 December 2013. In addition, the court records show that a notice of listing dated 21 May 2013 was sent to the applicant showing the final hearing date as 9 December 2013.
The applicant maintains that she did not receive either of those documents. That may be true. The notice of listing dated 21 May 2013 sent by the registry to the applicant bears an incorrect address for her, in that two digits in the number of the applicant’s street address are transposed. The address recorded for the applicant as at May 2013 in the court’s database contains the same error, so it is likely that the copy of the court order made on 15 May 2013 was also sent to the wrong address for the applicant.
On the other hand, exhibit 4 to the affidavit of Ms Jackson shows that the Australian Government Solicitor sent the applicant an email on Friday 6 December 2013 confirming the hearing date of 9 December 2013 at 10am. That email was sent to the correct email address for the applicant as shown on her initiating application. However, the applicant said that she did not receive that email. She said that she had left Australia for New Zealand on 31 October 2013 to deal with a family emergency. She claimed that, before leaving Australia on 25 October 2013, she telephoned the registry to say that she needed to be contacted by email. At the hearing of the reinstatement application, the court explained to the applicant that the appropriate way to change her address is by filing a notice of address for service. She replied that she was not changing her address. She said that she just asked that she be contacted by email rather than post. There is no record on the court file of any such telephone call from the applicant.
In any event, the applicant then said that her email address stopped working when she left Australia, due to a security feature of Microsoft, and she was not aware of that until she went overseas. That is very difficult to believe. People go overseas all the time and access their emails. In any event, the applicant did not say that, prior to leaving for New Zealand, she had notified the Minister that she needed to be contacted by email. After discovering the problem with her email, the applicant did not notify the court or the Minister that she had difficulties with her email or that she had a new email address.
The applicant had from 31 October 2013 until 6 December 2013 to sort out her email issues. It is implausible that she would not have done so prior to the Australian Government Solicitor sending her the email on 6 December 2013.
The applicant did have a new email address by 13 December 2013, because she used it to email the court and the Minister on that date to ask that the hearing, which she claimed was on 17 December 2013, be adjourned.
The applicant asked the court to see that email as evidence that she genuinely did believe that the hearing would be on 17 December 2013. However, the claim that the applicant did not receive the Minister’s email of 6 December 2013 advising her of the hearing date on 9 December 2013 is implausible.
In any event, the fundamental fact is that it was incumbent on the applicant to keep the court and the Minister apprised of her correct and current contact details, and it was incumbent upon her to ensure that she was aware of the correct hearing date. Her explanations for being unaware of the hearing date are not credible.
The Minister submitted that the applicant knew, when she left Australia, that her bridging visa would elapse in November 2013, prior to the final hearing. The Minister submitted that the applicant clearly had no intention of attending the hearing. That may be so, although it is unnecessary to make a finding to that effect.
All in all, I do not consider that the applicant’s reasons for non‑attendance are adequate. The applicant could have approached the Minister and the court in good time to seek an adjournment to enable her to deal with her family circumstances in New Zealand, or she could have sought to attend the hearing by telephone, just as she did on 8 February 2018.
Prospects of success
The most significant factor in a reinstatement application is the prospects of success of the substantive application. The applicant’s application, filed in this court on 22 March 2013, had five grounds of review. The applicant sought to amend them somewhat in her material filed for the purposes of the reinstatement proceeding. I will deal with the grounds in the original application and then the proposed amended grounds.
Ground 1
The first ground in the application filed on 22 March 2013 is:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
Particulars
1.1.1The Tribunal has erred in its conclusion that the substantial delay applied by the Respondent to the processing of the Applicant’s visa application did not amount to a denial of procedural fairness.
The applicant’s basic argument in relation to delay was that the Tribunal erred in considering that it had to apply the time of decision criteria as at the time it actually made its decision. The applicant said that the time that had elapsed between the application and the time of decision was so great that applying the time of decision criteria at the date of decision was a constructive failure to exercise jurisdiction.
Clause 461.221 of Schedule to 2 the Migration Regulations 1994 (“the Regulations”) required that, at the time of decision, the applicant continued to satisfy the time of application criteria in cl.461.212(1) of Schedule 2 of the Regulations. Essentially, they required that the applicant was the de facto partner of Mr Fisher at the time of application.
The applicant said that the Minister was required to consider the application within a reasonable time. She said that there were five unreasonable delays in this case. The first was from 26 September 2007, when she filed her application, to the date of the first delegate’s decision on 9 September 2008. The second was from the date of the first delegate’s decision to 21 April 2010, when the first Tribunal made its decision. The third was from the date of the first Tribunal’s decision to February 2011, when the Department sought further information. The fourth was from that date until November 2011, when the second delegate made a decision. The fifth was from that date until 15 February 2013, when the Tribunal conducted its second hearing.
The applicant relied on Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163; (2011) 124 ALD 149; (2011) 283 ALR 448; (2011) 86 ALJR 162; [2011] HCA 52, particularly at paragraphs 28 and 31, where the High Court said:
28.Although s 65A of the Act fixes the time within which the Minister must make a decision on certain applications for protection visas (those validly made under s 46 or remitted by any court or tribunal to the Minister for reconsideration), the Act and the Regulations do not fix the time within which a visa application of the kind now in issue must be decided. Yet it is not to be supposed that the Minister could refuse to consider a valid application for a visa (s 47(1)) or could unreasonably delay making the decision to grant or refuse the application (11). That is, the relevant provisions of the Regulations are to be construed on the footing that a decision to grant or refuse to grant a visa will be made promptly.
…
31.There is, as already noted, evident textual awkwardness in reading the requirement that an applicant continue to meet a single criterion as applying to only one of the several requirements that make up that criterion, and especially is that so when the temporal element of the relevant requirement is expressed as “continues to be”. But more than that, there is evident scope for capricious and unjust operation of the requirement in circumstances where its engagement depends upon the occurrence of a relevant factual change which, in the case of a person attaining the age of eighteen years, depends wholly upon how promptly the application for a visa is determined. Why should such a construction of the provisions be adopted?
The circumstances of Shahi were that a person who was or had been the holder of a protection visa could propose, in certain circumstances, that a member of her or his immediate family receive a protection visa. The phrase member of the immediate family was defined to include the parent of a person who was not eighteen years old or more. In Shahi, a seventeen year old boy was the holder of a protection visa. He proposed that his mother be given a humanitarian visa. Between the date of the application, in December 2009, and the date of the decision, in September 2010, the boy turned eighteen. The delegate considered that the mother no longer continued to satisfy the definition of member of the immediate family, and refused the application.
The High Court in Shahi considered the drafting history and context of the relevant provisions and concluded that the statutory construction proposed by the Minister was capricious and unjust. The High Court concluded that it was not a requirement for the grant of a subclass 202 visa that the visa applicant continue to be a member of the immediate family of the proposer. That conclusion was based on the statutory interpretation of the particular words applying to subclass 202 visas. It was not a general conclusion that the time of decision criteria stipulated for the purposes of other subclasses of visa do not need to be applied. Shahi is of no assistance to the applicant. It does not support the applicant’s argument that there was a jurisdictional error in this case.
The applicant also said there was an issue about what the words continues to satisfy mean. The applicant referred to Singh v Minister for Immigration and Border Protection (2016) FCA 679. That case addresses the question of whether continues to satisfy means that a person must meet the criteria at the time of application, the time of decision, and at all points in between, or whether the person is only required to satisfy the criteria at the time of application and the time of decision. The court in Singh concluded that the criterion needed to be satisfied at the time of application, the time of decision and at all points in between.
Singh is irrelevant to the applicant’s circumstances, as the Tribunal found that she has not satisfied the relevant criteria since 2009. The Tribunal found at paragraph 94 of its reasons for decision that the applicant’s relationship with Mr Fisher had broken down, at the latest, in January 2009. That may be an error, as the movement records for Mr Fisher show that he actually left Australia in February 2009. However, the point remains that there is a clear finding, which has not been challenged, that the applicant’s relationship broke down in the early part of 2009. There is no suggestion that the relationship has been resurrected.
It seems to me that this ground is not arguable.
Ground 2
The second ground in the application filed on 22 March 2013 is:
1.1.2The Tribunal has also erred in holding the Applicant responsible for this delay in failing to take into account that any Freedom of Information requests lodged by the applicant ought to have been completed within forty-five (45) days.
The Tribunal said at paragraph 91 of its reasons for decision:
… it is also apparent from the information set out above that responsibility for at least some of the processing delay about which the applicant complains must be placed squarely at her own feet, given the frequency with which she has changed her representatives and/or appointed them at the 11th hour, and sought extensions of time in order that her representatives can obtain access to her files under FOI or similar provisions and then make submissions on her behalf. Rather than being indicative of any denial of procedural fairness, at least some of these delays reflect the efforts of the Department and the Tribunal to accord procedural fairness to the applicant.
It is apparent from that passage that the Tribunal did not hold the applicant solely responsible for the delay in processing, but did consider her to be partly responsible for the delay. That is a reasonable conclusion, for the reasons explained by the Tribunal. In addition, the applicant did not provide information as to the current state of her relationship with Mr Fisher notwithstanding two requests by the delegate for such information.
The Tribunal was clearly aware of the applicant’s Freedom of Information (“FOI”) requests. However, it is true that the Tribunal did not acknowledge that such requests are required to be answered within 45 days. It may be accepted that the applicant made valid FOI requests that were not answered within 45 days. However, those circumstances could have made no difference to the decision, because by the time of decision, the applicant has ceased to be in a de facto relationship with Mr Fisher.
The Minister submitted that the applicant did not challenge the key finding made by the Tribunal to the effect that the relationship between the applicant and Mr Fisher ended on 11 January 2009 or earlier, albeit that the finding should have referred to 11 February 2009. The responsibility for the delay in processing was not relevant. As discussed above, I do not accept that the delay in processing had any bearing on the validity of the Tribunal’s decision or decision‑making process. This ground is not arguable.
Ground 3
The third ground in the application filed on 22 March 2013 is:
1.1.3The Tribunal has also erred in failing to determine that the cause of the delay imposed on the Applicant was a breach of s.54 of the Migration Act and the application of incorrect visa criteria by the delegate of the Minister.
It may be accepted that the first delegate made a mistake in breach of s.54 of the Migration Act1958. That mistake was corrected by the first Tribunal. However, the fact as found by the Tribunal in its decision made on 15 February 2013 was that the applicant’s relationship with Mr Fisher had ended more than a year before the first Tribunal made its decision on 21 April 2010. In these circumstances, the delay caused by the error made by the delegate is unfortunate but not indicative of jurisdictional error that is reviewable by this court. This ground is not arguable.
Ground 4
The fourth ground in the application filed on 22 March 2013 is:
1.1.4The Tribunal failed to lend sufficient weight to the relevance of 461.213(3) to the 461 NZ Family Relationship Visa in providing that “time of application” and “time of decision” criteria for the 461 NZ Family Relationship Visa was not intended by the regulations to be separated in time by five (5) years or more.
For the reasons discussed above, the delay in the processing of the application was not a jurisdictional error. This ground is not arguable.
Ground 5
The fifth ground in the application filed on 22 March 2013 is:
1.1.5The Tribunal failed to lend sufficient weight to the fact that the delegates of the Minister have had regard for inaccurate and defamatory statements for a period of fifteen (15) months and widely accepts the same before the Applicant was provided with an opportunity to respond in breach of Privacy Principles to access and correction.
In relation to this ground, the applicant complained about what she described as defamatory statements made by the first delegate. The decision of the first delegate is contained in annexure 3 the applicant’s affidavit affirmed on 7 February 2018. The allegedly defamatory passages eventually identified by the applicant are at pages 3 to 4 of that decision and are as follows:
As stated, Ms Savrimootoo did not re-enrol in 2006. RMIT advised in a report dated 24 May 2007 that Ms Savrimootoo was prevented from re-enrolling as she owed more than $15,000 comprised mainly of tuition fees for 2003 and 2005. Ms Savrimootoo advises that no debt exists. However, the documents she has provided to support this show that she has paid a total of $30,900 which is not equivalent to the fees charged by RMIT for each of the eight enrolled semesters. There is no evidence before me that it was beyond Ms Savrimootoo's control to ensure that all her fees were paid to allow her to remain enrolled at RMIT.
Ms Savrimootoo did not study in 2006. It was only when she was approached by the department via letter in February 2007 that she statted to seek alternative visa arrangements. This means she had over one year in which to resolve her situation with RMIT or seek to complete her studies at an alternative university. In the submission presented by her representative Ms Savrimootoo argues that she had only three working days from meeting with the departmental compliance officer on 6 March 2007 to ensure an offer with another university to enable her to maintain her lawful status and complete her degree. I do not accept this claim. Ms Savrimootoo would have been well aware that her student visa granted in relation to her studies at RMIT was due to expire on 15 March 2007. At the time of meeting with the departmental compliance officer she had not been studying at RMIT for over one year and yet there is no evidence before me that she sought to make alternative arrangements to study elsewhere or had made progress in resolving her issues with RMIT. It was only when contacted by the department that she sought an alternative education provider.
This passage concerns the applicant’s student visa and her studies at RMIT. The Tribunal did not take any of this into account. It was not mentioned anywhere in the Tribunal’s reasons for decision. That presumably was because it was completely irrelevant. The fact is that the delegate’s decisions are not reviewable by this court, and anything the delegate did cannot, of itself, be a jurisdictional error such as to invalidate the Tribunal’s decision.
Nevertheless, the applicant said that the delegate’s defamation contributed to the delay because the delegate ignored relevant material, or took into account irrelevant material. However, as discussed above in relation to Shahi, it is not arguable that the delay resulted in jurisdictional error in this case.
Proposed additional ground (a):
Proposed additional ground (a) is set out in paragraph 15(a) of the submissions attached to the affidavit affirmed by the applicant on 7 February 2018, which is as follows:
[The Tribunal] [erred] when it concluded that the delay of the Respondent in processing the Applicant’s visa was not a denial of procedural fairness. Such an error can amount to an error of law.7
Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [49] per Gummow and Hayne JJ.
7 Ground 1.1.1 of the Original Application
Paragraph 49 of Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12; (2004) 78 ALJR 992; [2004] HCA 32 is as follows:
Consistently with the reasoning in Plaintiff S157, there may be a question as to whether there has been a jurisdictional error by reason of the failure to discharge what have been called “imperative duties” or to observe “inviolable limitations or restraints” found in the Act. In Plaintiff S157, this question was readily answered, given the nature of the alleged error by the tribunal. The joint judgment explained the situation as follows:
The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a “privative clause decision” within s 474(2) of the Act. (citation omitted)
That paragraph does not address the present circumstances. This proposed ground is not arguable.
Proposed additional ground (b)
Proposed additional ground (b) is set out in paragraph 15(b) of the submissions attached to the affidavit affirmed by the applicant on 7 February 2018, which is as follows:
That the Tribunal erred when it considered the “time of application” and “time of decision” criteria, and that it was not intended that those two matters would be separated by a period of five or more years.8 Such an error may be a constructive failure to exercise jurisdiction by the application of an incorrect test of misunderstanding of the nature of the opinion to be formed.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]
8 Ibid at 1.1.4 [refers to Ground 1.1.1 of the Original Application]
Paragraph 41 of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30 is as follows:
For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be “an actual failure to exercise jurisdiction”. On the other hand, there is said to be a constructive failure to exercise jurisdiction when a tribunal misunderstand the nature of its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account. (citation omitted)
That paragraph does not address the present circumstances. This proposed ground is not arguable.
Proposed additional ground (c)
Proposed additional ground (c) is set out in paragraph 48.1 of the affidavit affirmed by the applicant on 15 December 2017, which is as follows:
In making it decision of 15 February 2013, the MRT made a jurisdictional error in failing to take into account the relevant submission that the first respondent was precluded from applying a time of decision other than 09 September 2008 to this application on the basis that any other subsequent time of decision would enable the first respondent to take advantage of its own incorrect administration of the Act and the Regulations.
Notwithstanding the delegate’s error, the Tribunal on review, by law, was not permitted to do anything other than apply the time of decision criteria as at the time of the Tribunal’s decision. This proposed ground is not arguable.
Proposed additional ground (d)
The applicant submitted orally at the reinstatement application on 8 February 2018 that:
The three Freedom of Information requests that I made were as a result of delegates ignoring relevant material and relying on irrelevant material.
The delegates may have ignored relevant material and relied on irrelevant material. However, this court has no power to review the decision of a delegate. This proposed ground has no prospect of success.
Proposed additional ground (e)
Proposed additional ground (e) is set out in paragraph 48.4.4 of the affidavit affirmed by the applicant on 15 December 2017, which is as follows:
It is submitted that the delegates of the first respondent ignored the relevant material (the primary criteria for the grant of the subclass 461 visa remained unassessed for several years after lodgement of the visa application) and relied on irrelevant material in a way that affected the exercise of power7 and that the MRT erred in law by misdirecting itself in failing to accept this relevant submission.
7 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73] – [74] and [82]
As previously mentioned, this court is not permitted to review decisions of delegates. While the first delegate was found to have made an error, the fact remains that the Tribunal was obliged to apply the law. It had no power to waive the time of decision criteria, and no power to assess them as at a different time. The Tribunal did not misdirect itself about this issue. This proposed ground is not arguable.
Conclusions on the prospects of success
All in all, I do not consider that there is any arguable ground of review that the applicant has put forward, either in her original application or in the grounds as she wished to amend them.
I have considered the Tribunal’s reasons for decision and decision making process. It seems to me that the Tribunal made the only decision that it could have made in the circumstances of this case. The Tribunal afforded the applicant procedural fairness by inviting her to a hearing, which she attended with representation. The issues on which the matter turned were the same as the issues on which the second delegate’s decision had turned. The Tribunal granted an adjournment when the applicant requested it, due to her only recently having obtained legal representation. The Tribunal took into account the submissions that the applicant made. It seems to me that there is no arguable basis on which the Tribunal’s reasons or decision‑making process could be impugned.
Conclusion
Adding the poor prospects of success to the inadequate reasons for non‑attendance and the very lengthy, and poorly explained delay in filing the reinstatement application, it seems to me that the reinstatement application must be dismissed with costs
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 28 February 2018
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